First, you should understand that there are different types of breath tests. There are the kind that the officer may try to get you to take at the side of the road allegedly to help him to determine if you are over the limit and whether to arrest you or not. This kind of test is called a “Portable Breath Test” and referred to as a “PBT”. You are not required by law to take this test, and it is not a recognized breath testing device by the Ohio Department of Health. Because of its unreliability, it is not admissible in evidence in a trial to prove that you are over the limit. This test is only used by the police to determine probable cause to arrest. You should not ever take this type of test.

The next types of breath tests are taken with the evidential breath testing machines approved by the Department of Health, and they are: the BAC DataMaster machine, the Intoxilyzer 5000 machine (various models), and the Alco-Sensor RBT III machine. It should be noted here that these machines are not the most current state-of-the-art in breath testing devices. Other more sophisticated and advanced machines are used by other states. You do not have a choice which machine to use or whether to take one or many tests (including blood and urine). Remember that the officer can request that you take blood, breath, or urine test of HIS choice. You also have the right to have your own independent test taken. The evidential breath tests taken by the police must be taken within two hours of the offense (time you were pulled over).

At this time in Ohio, it is not a crime to refuse to take the evidential breath test. You have implied your consent to take the test when you accepted your license from the State of Ohio, and they can administratively suspend your license for refusing to take the test. But the key factor in deciding whether or not to take the test is whether you will test over the limit. Unlike other states, Ohio uses one breath test to determine your blood alcohol level. IF you refuse to take the evidential tests offered by the officer, most likely you will have your license administratively suspended for a period of time longer than if you take the test. BUT if you take it and fail the test, at least three damaging things will result: 1. You will subject yourself to an additional per se charge of driving with a prohibited alcohol level, which generally makes the defense of your case more difficult. 2. You potentially could score over the high tier alcohol level and subject yourself to a much harsher sentence (double the jail time). 3. You will lose your license anyway (first for a shorter period of time under the Administrative License Suspension and then longer under the conviction for the DUI case itself). Obviously, if you have had nothing or very little to drink, your taking the test could help your defense. At least it would prove the lack of sufficient alcohol for them to make the per se level of a DUI case. It will not usually keep you from being charged with a DUI under the impaired section (4511.19A.1). (I have never heard of an officer un-arresting someone that he has taken into the station for a DUI offense after they have tested under the limit). Remember, he has already decided that you were impaired or he would not have arrested you.

There are numerous other things to consider in whether to take the breath test or not. These machines operate on electrical current and attempt to measure a very small sample of your breath and interpret the results of this small sample into a specific blood-alcohol ratio. The smallest defect in the calibration solutions used to check these machines, some radio frequency interference with the machines operation, your own burps and regurgitations, any recent mouth alcohol from innocent sources, and electrical surges in the operation of these machines may give a false high reading of your sample. Knowing that so much depends on the results of these tests may cause you to question their reliability and effect your decision to take or not to take the test. Many states require two tests to determine the reliability of the test results, but Ohio lets your fate hang on this machine’s one test result.

The officers will usually try to persuade you to “cooperate” and take the test. You are not “cooperating” by taking the test. Don’t be afraid that you will offend the officer by refusing to take the test because you question its reliability.

But if you have taken the breath, blood, or urine test, there are still significant defenses to this charge; and the test result does not mean you are guilty of the offense.

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